The Office of the Privacy Commissioner and Behavioural
In December 2012, the Office of the Privacy Commissioner (OPC)
announced a new guideline on behavioural advertising. The guideline
provides that: (i) online tracking and behavioural advertising
constitute the collection of personal information; and (ii) you
need informed consent to make such collections. While neither of
these positions is surprising under the Personal Information
Protection and Electronic Documents Act (PIPEDA), the new
guideline sets out the commissioner's application of the Act to
In a speech following the announcement of the guideline, the
privacy commissioner confirmed that an "opt-out" consent
model is permissible for behavioural advertising, provided:
The purpose of the collection is clearly stated, at or before
the time of collection;
The opt-out is easy, immediate and persistent; and
Any collection and use of personal information is limited, and
when the purpose is achieved, the data is destroyed or
The commissioner stressed that device fingerprinting is not
permissible for behavioural advertising, as it occurs without
knowledge or consent, but it may be permissible in other contexts
where this concern does not arise.
The privacy commissioner also addressed tracking and behavioural
advertising directed at children, stating that this was generally
not permissible. The OPC will not adopt a bright-line test as to
who is and is not a child, but it will look at the overall context
of the collection and use of personal information and the
minor's ability to provide informed consent. The commissioner
criticized the practice of obtaining parental consent for tracking
children, as PIPEDA focuses on individual consent rather than
consent on behalf of another person, even one's own child.
The Canadian Radio-television and Telecommunications
Commission (CRTC) and Canada's Anti-Spam Legislation
In late 2012, a chief compliance officer with the CRTC confirmed
that it is possible to continue to use existing contact lists
following the coming into force of CASL, although messages sent
after the Act comes into force would need to comply with the
specified disclosure requirements.
While revised or final regulations under CASL have not been
published, the commissioner appeared to indicate that the CRTC
would retain the requirement to identify both the sender of
the message and the person on whose behalf it was sent in the
message. This requirement appeared in the initial draft of the CRTC
Regulations, as CASL itself requires identification of only
one of these persons. In discussing this, the commissioner
specifically referenced the outsourcing of commercial e-mail
communications to third-party e-mail distributors. Furthermore, the
commissioner reiterated that the CRTC will expect marketers to
contact third-party list providers to inform them when they receive
an unsubscribe request. However, pending the final regulations, it
may be possible to achieve this by structuring the unsubscribe
mechanism to notify list providers directly without additional
action from the marketer.
As of the date of writing, the CRTC has not provided an estimate
on the coming-into-force date for CASL; however, it is expected to
be in 2012. To prepare for this, the CRTC is currently assembling a
25-person enforcement team.
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The CRTC staff have recently held an informal consultation with industry and consumer groups following the October 2012 release of CRTC’s guidelines regarding the interpretation of its CASL regulations.
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